“To convict a person for penetrative sexual assault, the psyche, maturity and previous conduct of the victim vis-à-vis the accused also acquires relevance, “holds Calcutta High Court.

In a recent decision, the High Court of Calcutta has held that voluntary sexual acts with minors will not come under POCSO Act. The Court was hearing an appeal by the accused, a 22-year-old man, previously convicted by the Trial Court. 

BRIEF FACTS

In this case, the accused is a 22-year old man and the victim is a 16-year-old girl. The accused was convicted by the Trial Court under 376(1) of the Indian Penal Code, and under Section 4 of the POCSO Act. The accused preferred an appeal against this decision of the trial court in the High Court urging that the victim had admitted her prior relationship with him.

APPELLANT’s CONTENTIONS

The accused has put forth the following contentions in his appeal:

• That the victim had previous relationship with the accused and hence the matter cannot come under POCSO Act.
• No evidence has been produced to connect the accused with a previous hymen injury of the victim, sufficient to convict the appellant on either of the charges
• It is argued that the time lapse of two days between the date of the incident (August 12, 2017) and lodging the FIR (August 14, 2017) gives rise to a suspicion as regards the involvement of the accused.

COURT’s FINDINGS

On the point of delay in lodging an FIR in sexual harassment cases, the Court held that:

In case of offences under Section 376, IPC, in the light of Section 154 of the Code of Civil Procedure, 1973 (CrPC), delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay, it was held by the Supreme Court, has the effect of putting the court on its guard to search if any explanation has been offered for the delay and, if offered, whether it is satisfactory or not.

On the point of consent of a minor, the Court held that when there is consensual participatory intercourse, it need not always result in unilateral act of the accused.

“Although the consent of a minor is not a good consent in law, and cannot be taken into account as ‘consent’ as such, the expression ‘penetration’ as envisaged in the POCSO Act has to be taken to mean a positive, unilateral act on the part of the accused. Consensual participatory intercourse, in view of the passion involved, need not always make penetration, by itself, an unilateral positive act of the accused but might also be a union between two persons out of their own volition.”

The court further held that:

The psyche of the parties and the maturity level of the victim are also relevant factors to be taken into consideration to decide whether the penetration was a unilateral and positive act on the part of the male. Specifically the Court stated:

“The POCSO Act defines anyone under eighteen years of age as a ‘child’, but to convict a person for penetrative sexual assault, the psyche, maturity and previous conduct of the victim vis-à-vis the accused also acquires relevance. In the present case, the previous relation between the victim and the accused and their physical union on several occasions raise a strong presumption of the alleged incriminating act being participatory at both ends, not a unilateral act of the accused.”

Thus, the Court acquitted the accused setting aside the decision of the Trial Court concluding that only the male sex should not be punished just because of the peculiar nature of anatomy of the sexual organs of different genders.

Case Title: Ranjit Rajbanshi Vs. State of West Bengal